M'Reynolds against M'Cord, 6 Watts 288

The opinion of the Court was delivered by Gibson, C. J. Preliminary to proof of contents and involving proof of execution, stands proof of pre-existence in the state of a valid instrument. This is a rudimental principle, which is not contested. Now there was no specific proof of execution; and what was there else? Every thing is to be presumed in odium spoliatoris; and had it certainly appeared that the destroyed paper purported to be an agreement, such as is attempted to be established, it would have sufficed for the admission of subsequent evidence of its contents. In an anonymous case in Ld.

Raym. 731, a sworn copy of the defendant’s note, tom up by him, was allowed to go in-proof of it; and Lord Holt remarked, that a small thing will supply an instrument destroyed by one, against whose title it operated. So in Young v. Holmes, 1 Stra. 71, an attorney who had examined a lease withheld, was admitted' to prove the contents of it.

In neither of those cases does it appear that specific evidence of execution was given; and it seems clear on principle, that if there be no subscribing witness, the act of destruction. is itself the best evidence of which such a case is susceptible, because it has put it out of the party’s power to submit the paper to witnesses of the hand writing, $nd the act of a spoiler is in its nature, equipollent to confession.

But before he can be fixed with the character of a spoiler, the purport of the paper must be proved to have been what it is surmised to have been. ' The presumption in favour of innocence, which arises wherever there is room for it, excludes intendment, that a paper destroyed by a man in a confidential relation, was of value to any one. There are few men who have not papers which it would be not only innocent, but prudent, to destroy. Now the evidence of contents by Barton, unless preceded by evidence of execution or its substitute, destruction, was incompetent.

If, however, the paper destroyed were shown to have been an agreement for the land, it would raise a presumption of identity sufficient to dispense with the ordinary proof of execution, and let in the contents of the paper read by Barton.

The question, then was narrowed to the point of identity, the affirmative of which, being the proper equivalent of proof of execution, lay with the party making title under the instrument; and the matter here is resolved into a critical inquiry into the relative duty of the parties to have followed out to a satisfactory conclusion, the examination touching the knowledge of the witness, whose testimony was to become the basis of proof of contents.

She testified affirmatively that there was an agreement betwixt her husband and her brother ; about the land, and that her brother .destroyed it; but that she had not read, it, and that it had not been read to her. How then could she prove its identity? Her positive assertion goes for nothing, if she be not qualified to testify by an adequate knowledge of the fact. In strictness, proof of knowledge ought to have preceded the proof of identity, as it does in the case of a witness to handwriting who is not permitted to speak before he has shown a competent knowledge of the signature to be identified.

It would seem, therefore, that the plaintiffs in making out a circumstance to stand for proof of execution, ought to have shown a competent degree of Hcaowledge in the witness, drawn from the declarations of him who destroyed the paper, or from some other source equally satisfactory, if such there were. Had that been done, it would have produced a presumption of identity and consequent execution, sufficient to make way for the evidence of contents. ■ The evidence of a parol agreement to convey, was properly admitted.

The plaintiffs were not estopped by the assertion of one agreement, from asserting another and an independent one. A party in ejectment may certainly urge more than one title, and recover on the superior one. If, then, the plaintiffs can show a parol agreement to convey, partly executed by performance on the one side and delivery of possession under the contract, not to a mere agent, on the other, they may perhaps recover. The remaining exceptions disclose nothing like error.

It is barely necessary to say, that the acknowledgment of Dill’s title by ■Vaniah Rees, could prejudice no one but himself; and not even himself, if made in ignorance of his right; that the Qills could not strengthen their title by improvement, if the possession were gained by a fraudulent destruction of papers; that the Reeses were not bound to give notice of their title, if they were ignorant of it, or the Dills knew of it; that the question of performance on the part of the Reeses, depending as it does on matter of record, was properly determined by the court; and that it was immaterial to the law of the case, with which alone we have to do, whether the brother and sister were both implicated in the alleged fraud.

The exceptions to the charge are therefore not sustained. Judgment reversed, and a venire facias de novo awarded.